tnx-  CtnyL^  jy 

/&{*%- 


opiisrioisr 


OF 


JUDGE  N.  K.  HALL, 


OF  THE 


NITED  STATES  DISTRICT  COURT  FOR  THE  NORTHERN  DIS¬ 
TRICT  OF  NEW-YORK, 


ON 


HABEAS  CORPUS, 


« 

IN  THE  CASE  OF 


REV.  JTTDSON  D.  BENEDICT. 


NEW-YORK : 

OFFICE  OF  NEW-YORK  ARGUS:  COMSTOCK  AND  CASSIDY,  PROPRIETORS. 

1862. 

JOHN  A.  GRAY,  PRINTER,  16  AND  18  JACOB  STREET. 


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JUDGE  HALL’S  OPINION 


The  Opinion  of  Judge  Hall,  now  printed,  is  on  a  topic  popular  in  its  nature,  and  of  an  interest  personal, 
political  and  universal. 

Military  power,  in  exclusion  of  all  existing  civil  process  of  law,  is  now  claimed  throughout  the  loyal  State* 
to  be  exercised  by  Provost  Marshals.  To  those  who  enforce  it,  their  friends  and  supporters,  this  may 
harmless  or  trifling ;  not  so  to  those  who  are,  or  may  he,  its  victims. 

To  he  arrested,  for  one  knows  not  what ;  to  he  confined,  no  one  entitled  to  ask  where ;  to  be  tried,  no  one 
can  say  when,— by  a  law  nowhere  known  or  established ;  or  to  linger  out  life  in  a  cell,  without  trial,  presents  a 
body  of  tyranny  which  cannot  he  enlarged. 

To  prevent  this  is  the  office  of  the  Writ  of  Habeas  Corpus. 

It  would  not  seem  wisdom,  in  those  who  established  our  liberty,  to  have  conferred  on  the  Executive,  who 
was  to  exercise  it,  the  right  of  determining  when  he  should  put  forth  the  power  of  suspending  the  laws  protect¬ 
ing  the  liberties  of  the  people.  The  uniform  opinion,  until  lately,  has  been  that  it  was  in  the  power  only  of 
Congress,  whose  office  it  is  to  make  and  repeal  laws,  to  suspend  our  lawful  liberty.  Its  members  are  speedily 
and  directly  responsible  to  the  people,  and  are  themselves  subject  to  the  irresponsible  power  which  they  may 
invoke.  In  this  there  may  be  some  security.  In  mere  Executive  legislation,  supported  by  military  force,  there 
is  none. 

On  this  vital  matter,  Judge  Hall’s  decision  is  clear,  forcible  and  convincing.  The  Opinion  is  called  forth  in 
the  regular  course  of  his  duty,  by  a  case  arising  in  the  ordinary  progress  of  life.  It  is  not  an  opinion  volunteered. 
It  is  not  written  to  uphold  a  power  on  which  he  is  dependent.  It  is  not  purchased  by  hope  of  promotion.  It  is 
the  calm  judgment  of  a  learned  magistrate,  deciding  for  law  and  liberty.  Its  principles  equally  touch  property 
and  life.  No  person  can  he  insensible  to  its  importance,  and  there  is  no  one  whom  it  does  not  concern. 

As  members  of  a  profession  whose  highest  office  and  gravest  duty  it  is  to  protect,  preserve  and  defend  the 
liberty  of  the  citizen,  we  ask  the  universal  perusal  of  this  judgment. 

New  York,  October,  1862. 


ALEXANDER  HAMILTON,  Jr., 
EDWARD  H.  OWEN, 

WILLIAM  BETTS, 

C.  O'CONOR, 

F.  F.  MARBURY, 

J.  E.  BURRILL, 

W.  C.  PRIME, 

WASHINGTON  Q.  MORTON, 
THOMAS  H.  RODMAN, 
JEREMIAH  LAROCQUE, 
WALTER  L.  LIVINGSTON, 

E.  J.  WILSON, 

BEVERLEY  ROBINSON, 
CLARKSON  N.  POTTER, 
GEORGE  A.  HALSEY, 

J.  A.  STOUTENBURGH, 
RICHARD  O’GORMAN, 
SAMUEL  L.  M.  BARLOW, 

G.  M.  SPEIR, 


DANIEL  LORD, 

JAMES  T.  BRADY, 

E.  W.  STOUGHTON, 
GREENE  C.  BRONSON, 
G.  R.  J.  BOWDOIN, 

W.  C.  WETMORE, 
NELSON  CHASE, 

JOHN  N.  WHITING, 

L.  S.  CHATFIELD, 
JOSEPH  LAROCQUE, 
JOHN  McKEON, 

A.  MANN,  Jr., 

GEORGE  BUCIvHAM, 
GILBERT  DEAN, 

C.  DONOHUE, 

F.  F.  STALLKNEGHT, 
WILLIAM  C.  BARRETT, 
HAMILTON  MORTON. 


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JUDGE  HALL’S  OPINION 

ON 

HABEAS  CORPUS, 

IN  THE  CASE  OF 

JUDSOIST  D.  BENEDICT. 

- • - 


IN  THE  MATTER  OF  ) 

JUDSON  D.  BENEDICT,  f 

Hall,  District  Judge. 

The  application  for  the  writ  of  habeas  corpus ,  in 
this  case,  was  made  while  I  was  engaged  in  other 
duties;  and  although  I  retained  the  petition  and 
gave  the  questions  presented  a  hasty  examination, 
before  I  allowed  the  writ,  I  had  no  time  to  prepare 
an  opinion  upon  the  questions  which  then  occurred 
to  me  as  necessary  to  be  considered  before  grant¬ 
ing  the  petitioner’s  application.  I  therefore  simply 
made  a  note  of  the  authorities  examined ;  and,  as 
the  case  is  one  of  importance,  I  shall  now  state 
my  opinion  upon  the  questions  considered  at  the 
time  the  petition  for  the  habeas  corpus  was  under 
consideration;  and  shall  refer  to  the  authorities 
then  examined,  and  some  others,  which  appear  to 
me  to  require  the  exercise  of  the  jurisdiction  and 
authority  invoked  by  the  petitioner. 

The  Act  of  Congress  of  September  24, 1789  (the 
Judiciary  Act),  declares  that  “either  of  the  Jus¬ 
tices  of  the  Supreme  Court,  as  well  as  Judges  of 
the  District  Courts,  shall  have  power  to  grant 
writs  of  habeas  corpus  for  the  purpose  of  an  in¬ 
quiry  into  the  cause  of  commitment : — Provided 
that  writs  of  habeas  corpus  shall  in  no  case  extend 
to  prisoners  in  jail,  unless  where  they  are  in  cus¬ 
tody,  under  or  by  color  of  the  authority  of  the 
United  States,  or  are  committed  for  trial  before 
some  court  of  the  same,  or  are  necessary  to  be 
brought  into  court  to  testify.” 

It  appears,  by  the  petition  and  affidavits  an¬ 
nexed,  that  the  petitioner  is  confined  in  jail,  and 
that  the  only  cause  of  his  detention  rendered  by 
the  jailer,  is  a  paper  delivered  to  him  by  A.  G. 
Stevens,  Deputy  U.  S.  Marshal,  of  which  the  fol¬ 
lowing  is  a  copy : 

“Marshal’s  Office,  ) 
Buffalo,  September  2d,  1862.  J 

David  M.  Grant  will  take  from  Fort  Porter,  Thomas 
Cummings,  James  Parker,  Antoine  Quantent,  Noah 
B.  Clark,  and  Jared  Benedict,  prisoners  confined 
there,  committed  under  orders  of  the  War  Depart¬ 
ment,  and  remove  them  to  the  Erie  County  Jail  for 
safe  keeping,  and  there  detain  them  until  further 
order,  and  the  Sheriff  or  Jailor  of  said  County  will 
keep  them  until  further  order,  in  said  Jail. 

(Signed)  A.  G.  STEVENS, 

U.  S.  Dep.  Marshal. 

“  To  Col.  E.  P.  Chapin,  and  the  Sheriff,  and  Jailor  of 
Erie  County.” 


From  this  it  clearly  appears  that  the  petitioner 
is  in  custody  by  color  of  the  authority  of  the 
United  States,  either  under  the  orders  of  the  War 
Department,  or  of  the  Deputy  Marshal,  who  is  an 
officer  deriving  his  authority,  as  such,  from  the 
United  States. 

The  petition  further  shows  that  when  the  Dep¬ 
uty  Marshal  was  applied  to  by  the  counsel  for  the 
petitioner,  and  asked  “  If  he  arrested  the  petitioner 
by  virtue  of  any  order,  process  or  paper,”  that 
officer  said  he  did  not,  but  showed  the  counsel  a 
slip,  cut  from  a  newspaper,  purporting  to  contain 
a  copy  of  an  order  of  the  War  Department,  in  the 
following  words : 

“War  Department,  ) 
Washington,  August  8th,  1862.  f 

Ordered  First— That  all  United  States  Marshals,  and 
Superintendents,  and  Chiefs  of  Police,  of  any  town, 
city  or  district,  be  and  they  are  hereby  authorized 
and  directed  to  arrest  and  imprison  any  person  or 
persons  who  may  be  engaged,  by  act,  speech  or 
writing,  in  discouraging  volunteer  enlistments,  or  in 
any  way  giving  aid  and  comfort  to  the  enemy,  or  in 
any  other  disloyal  practice  against  the  United  States. 
Second— That  immediate  report  be  made  to  Major  L. 
C.  Turner,  Judge  Advocate,  in  order  that  such  persons 
may  be  tried  before  a  military  commission. 

Third — That  the  expenses  of  such  arrest  and  imprison¬ 
ment  will  be  certified  to  the  Chief  Clerk  of  the  War 
Department,  for  settlement  and  payment. 

(Signed)  EDWIN  M.  STANTON, 

Secretary  of  War.” 

The  affidavit  of  the  counsel  also  states  that  the 
Deputy  Marshal,  at  the  same  time,  said,  “  that 
printed  slip  was  his  only  authority  tor  the  arrest 
of  said  Benedict.” 

The  petitioner  states  in  his  petition  that  he  “  is 
not  committed  or  detained  by  virtue  of  any  pro¬ 
cess  issued  by  any  court  of  the  United  States,  or 
any  Judge  thereof,  or  by  virtue  of  the  final  judg¬ 
ment  or  decree  of  any  court,  or  by  virtue  of  any 
process  of  any  kind  or  description ;  that  he  has 
neither  by  act  or  speech  been  disloyal  to  the  Con¬ 
stitution  or  laws  of  the  United  States,  or  been 
guilty  of  any  violation  of  any  order  of  the  War 
Department,  or  of  the  President  of  the  United 
States,  or  been  guilty  of  any  offense  or  act  subject¬ 
ing  him  to  arrest ;”  and  this  petition  is  verified  by 
the  oath  of  the  petitioner. 

On  the  case  thus  made  by  the  petitioner,  I 
should  have  granted  a  habeas  corpus  at  once,  on 
the  first  reading  of  his  petition  and  the  accompa¬ 
nying  affidavits,  had  I  not  seen  a  newspaper  copy 


6 


of  an  order  of  the  War  Department  assuming  to 
suspend,  in  certain  cases,  the  privilege  of  the  writ 

of  habeas  corpus. 

This  order  bears  the  same  date  as  that  referred 
to  by  the  Deputy  Marshal,  and  is  in  the  following 
words : 

“War  Department,  ) 
Washington,  August  8th,  1862.  f 

Order  to  prevent  evasion  of  military  duty  and  for 
suppression  of  dieloyal  practices. 

First— By  direction  of  the  President  of  the  United 
States,  it  is  hereby  ordered  that,  until  further  order, 
no  citizen  liable  to  be  drafted  into  the  militia  shall 
be  allowed  to  go  to  a  foreign  country,  and  all  Mar 
shals,  Deputy  Marshals,  and  military  officers  of  the 
United  States  are  directed,  and  all  police  authori¬ 
ties,  especially  at  the  porta  of  the  United  States  on 
the  seaboard  and  on  the  frontier,  are  requested,  to 
see  that  this  order  is  faithfully  carried  into  effect 
And  they  are  hereby  authorized  and  directed  to  arrest 
and  detain  any  person  or  persons  about  to  depart 
from  the  United  States,  in  violation  of  this  order, 
and  report  to  L.  C.  Turner.  Judge  Advocate,  at 
Washington  City,  for  further  instruction  respecting 
the  person  or  persons  so  arrested  or  detained. 

Second — Any  person  liable  to  draft,  who  shall  absent 
himself  from  his  county  or  State,  before  such  draft  is 
made,  will  be  arrested  by  any  Provost  Marshal  or 
other  United  States  or  State  officer,  wherever  he  may 
be  found  within  the  jurisdiction  of  the  United  States, 
and  conveyed  to  the  nearest  military  post  or  depot, 
and  placed  on  military  duty  for  the  term  of  the 
draft ;  and  the  expenses  of  his  own  arrest  and  con¬ 
veyance  to  such  post  or  depot,  and  also  the  sum  of 
five  dollars  as  a  reward  to  the  officer  who  shall  make 
such  arrest,  shall  be  deducted  from  his  pay. 

Third— The  writ  of  habeas  corpus  is  hereby  suspended 
in  respect  to  all  prisoners  so  arrested  and  detained, 
and  in  respect  to  all  persons  arrested  for  disloyal 
practices. 

(Signed)  EDWIN  M.  STANTON. 

Secretary  of  War.” 

These  two  orders  of  the  War  Department,  bear¬ 
ing  the  same  date,  may  properly  be  considered  to¬ 
gether,  and  as  relating  to  the  same  general  sub¬ 
ject.  Whether  issued  separately  or  together; 
whether,  if  issued  separately,  the  one  referred  to 
by  the  Deputy  Marshal  was  first  issued  or  not,  it 
may  not  be  very  material  to  inquire  ;  but,  as  that 
declares  that  “  All  United  States  Marshals,  and 
Superintendents,  and  Chiefs  of  Police  of  any  town, 
city  or  district,  be  and  they  are  hereby  authorized  [ 
and  directed  to  arrest  and  imprison  any  person  or 
persons  who  may  be  engaged,  by  act,  speech  or 
writing,  in  discouraging  volunteer  enlistments,  or 
in  any  way  giving  aid  and  comfort  to  the  enemy, 
or  in  any  other  disloyal  practice  against  the  United 
States  and  the  other  order  assumes  to  suspend 
the  writ  of  habeas  corpus  in  respect  not  only  to  all 
persons  arrested  and  detained  by  virtue  thereof, 
but  also  “  in  respect  to  all  persons  arrested  for 
disloyal  practices  ”  (a  term  not  otherwise  con¬ 
tained  in  that  order),  it  may  be  presumed  that  the 
order  referred  to  by  the  Deputy  Marshal  was  first 
issued,  and  that  the  other  order  was  intended  to 
suspend  the  writ  of  habeas  corpus  in  respect  to 
persons  arrested  under  that  order,  or  under  the 
order  referred  to  by  the  Deputy  Marshal. 

If  the  order  declaring  the  writ  of  habeas  corpus 
to  be  suspended  can  be  considered  as  legal  and 
valid,  it  is  necessary  to  consider  its  scope  and  ef¬ 
fect,  and,  as  both  questions  are  therefore  properly 
before  me,  I  shall  consider  both  in  their  order. 


It  is  to  be  observed  that  the  order  first  recited 
confines  the  power  of  arrest  to  United  States  Mar¬ 
shals  and  Superintendents  and  Chiefs  of  Police, 
while  the  second  order,  in  respect  to  the  cases 
within  it,  extends  the  power  to  all  Deputy  Marshals 
and  all  military  officers  of  the  United  States,  and 
to  all  police  authorities.  These  officers,  many 
thousands  in  number,  and  of  every  grade  of  intel¬ 
ligence,  are  scattered  over  every  portion  of  our 
country.  To  all  of  these  this  arbitrary  power  of 
arrest,  without  warrant,  without  any  prior  legal 
inquiry,  and  without  the  slightest  preliminary  proof 
of  guilt,  is  assumed  to  be  given.  Was  it  intended, 
then,  that  every  policeman  and  every  military  offi¬ 
cer  throughout  the  loyal  States,  and  in  localities 
far  removed  from  the  seat  of  military  operations, 
should  be  authorized  to  arrest  and  imprison  any 
citizen,  and  that  if,  on  taking  the  party  into  eue- 
tody,  or  afterwards,  such  officer  should  declare 
that  he  made  the  arrest  by  virtue  of  the  orders  of 
the  War  Department  of  August  8,  1862,  or  for 
disloyal  practices,  he  could  keep  him  in  prison,  or 
in  his  own  custody,  or  compel  him  to  enter  the 
military  service,  and  also  require  all  judicial  offi¬ 
ce!*,  when  the  prisoner  or  his  friends  applied  for  a 
writ  of  habeas  corpus ,  that  the  facts  of  the  case 
might  be  judicially  ascertained  and  the  question 
of  the  legality  of  his  arrest  and  detention  consid¬ 
ered,  to  say,  “  The  privilege  of  the  writ  of  habeas 
corpus  is  suspended,  and  you  can  have  no  relief?” 
Is  every  man  supposed  to  be  subject  to  militia 
duty,  who  has  left  or  shall  leave  his  county  since 
the  8th  of  August  last,  and  prior  to  the  unknown 
day  in  the  future  when  a  draft  is  to  be  made,  no 
matter  under  what  circumstances,  to  be  punished 
by  being  forced  into  the  military  service  for  nine 
months,  without  any  hearing,  without  any  oppor¬ 
tunity  to  show  that  he  is  exempt  from  militia  duty, 
when  the  Constitution  provides  that  “  no  person 
shall  be  deprived  of  life,  liberty  or  property,  with¬ 
out  due  process  of  law  ?”  I  am  aware  that  these 
restraints  upon  travel  have  been  removed,  but  was 
that  the  original  intention  of  the  order  ? 

My  personal  confidence  in  the  integrity,  patriot¬ 
ism  and  good  sense  of  the  President,  as  well  as 
the  respect  due  to  the  high  office  he  holds,  com¬ 
pels  me  to  require  the  most  conclusive  evidence 
upon  the  point  before  adopting  the  conclusion  that 
he  has  ever  deliberately  sanctioned  so  palpable  a 
violation  of  the  constitutional  rights  of  the  citi¬ 
zens  of  the  loyal  States  as  the  order  of  the  War 
Department,  thus  construed,  would  justify  and  re¬ 
quire. 

Here,  and  throughout  most  of  the  loyal  States, 
we  are  far  removed  from  the  several  fields  of  mili¬ 
tary  operation.  All  the  arts  and  occupations  of 
peace  can  be  and  are  pursued  in  entire  security, 
and  all  the  laws  of  the  State  and  Union  can  be 
administered  by  the  ordinary  Courts  of  justice  as 
freely,  as  fully,  and  as  efficiently,  as  in  time  of 
profound  peace.  The  execution  of  the  laws  of  the 
land  has  not  been  resisted  by  our  people.  On  the 
contrary,  they  have  responded  to  the  calls  of  the 
General  Government  with  unexampled  unanimity 
and  alacrity,  and  have  offered  their  blood  and  their 
j  treasure  without  stint  to  maintain  the  authority  of 


7 


constitutional  government.  They  have  waited  for 
no  conscription,  but  have  sent  hundreds  of  thou¬ 
sands  of  volunteers  into  the  field  to  meet,  without 
complaint,  all  the  exposures,  all  the  vicissitudes 
and  all  the  dangers  of  the  camp  and  the  battle¬ 
field.  Without  waiting  for  the  tax-gatherer,  they 
have  voluntarily  and  freely  contributed  untold 
millions  to  hasten  the  departure  of  these  volun¬ 
teers  and  strengthen  the  arm  of  the  Government 
established  under  the  Constitution  of  the  Union. 
Is  it  possible  that  such  orders  as  those  above 
copied  were  intended  to  operate  upon  such  a  peo¬ 
ple,  in  the  loyal  States,  and  place  their  liberties 
at  the  mercy  of  every  military  officer,  every  officer 
of  police,  and  every  policeman,  and  then  to  sus¬ 
pend  the  writ  of  habeas  corpus  in  such  manner  as 
to  prevent  a  judicial  inquiry  into  the  question 
whether  the  facts  of  the  case  would  justify  an  ar¬ 
rest,  even  under  such  orders  ?  Can  a  man  not 
liable  to  do  military  duty  be  arrested  under  such  or¬ 
der,  and  be  detained  by  force  in  the  military  ser¬ 
vice,  without  the  privilege  of  showing  his  exemp¬ 
tion  and  procuring  his  discharge  from  such  illegal 
restraint  ?  Could  it  have  been  intended  that  mil¬ 
itary  officers  of  every  grade,  and  policemen  of 
every  class,  throughout  the  loyal  States,  acting 
upon  their  own  suspicions,  or  upon  any  representa¬ 
tion  which  political  prejudice,  personal  malignity, 
or  other  motives  might  suggest,  or  in  the  mere 
wantonness  of  unusual  and  arbitrary  power,  should 
be  authorized  to  arrest  and  imprison  any  citizen, 
without  the  possibility  of  a  judical  investigation  ? 
Is  every  official  to  whom  these  orders  are  addressed 
to  determine  for  himself  wha1;  shall  constitute  dis¬ 
loyal  practices — a  term  not  known  to  the  law,  which 
has  no  fixed  or  reasonably  certain  definition,  and 
which  every  arresting  officer  i3  left  to  interpret  as 
his  prejudices,  his  passions  or  his  interest  may  in¬ 
cline  ?  And  is  such  interpretation  to  be  subject 
to  no  revision,  except  by  a  Judge  Advocate  at  the 
seat  of  Government,  acting  upon  extra-judicial,  if 
not  entirely  ex  parte  testimony,  in  the  absence  of 
the  accused  ?  Such  a  construction  of  the  order 
would  place  the  liberty  of  every  citizen  at  the 
mercy  of  any  of  these  officials,  one  of  whom  might 
conclude  that  to  speak  disparagingly  of  the  mili¬ 
tary  ability  and  military  conduct  of  General  Mc¬ 
Clellan  was  a  disloyal  practice,  and  tended  to 
discourage  volunteer  enlistments ;  while  another 
might  consider  the  abuse  of  McClellan  a  virtue, 
and  hold  the  expression  of  a  doubt  of  the  super¬ 
lative  ability  of  Fremont  as  a  disloyal  practice  of 
the  deepest  dye ;  and  yet  another  might  suppose 
that  any  person  who  should  read  aloud  the  news¬ 
paper  accounts  of  the  retreat  of  General  Pope’s 
army  from  the  Rapid  Ann  to  the  Potomac,  and  ex¬ 
press  a  doubt  of  the  competency  of  that  General, 
was  discouraging  enlistments  and  giving  aid  and 
comfort  to  the  enemy. 

I  confess,  nevertheless,  that  there  is  some  rea¬ 
son  for  assuming  that  the  fair  construction  of  the 
language  of  the  order  of  the  War  Department,  if 
it  could  properly  be  considered  without  reference 
to  the  provisions  of  the  Constitution  of  the  United 
States,  would  lead  us  to  conclude  that  the  privilege 
of  the  writ  of  habeas  corpus  was  intended  to  be 


suspended  in  all  the  cases  supposed,  and  I  under¬ 
stand  such  a  construction  has  been  sometimes  in¬ 
sisted  upon ;  but  when  I  consider  that  the  Consti¬ 
tution  has  imposed  restraints  upon  the  arbitrary 
exercise  of  military  power  (at  least  beyond  the 
lines  of  military  operations),  I  am  unwilling  to 
adopt  that  construction  without  strong  evidence 
that  such  was  the  intention  of  the  orders  referred 
to.  Such  a  construction  of  these  orders,  if  their 
validity  can  be  established,  would  go  far  towards 
making  our  Government  a  despotic  instead  of  a 
constitutional  Government. 

Even  in  the  midst  of  our  present  struggle,  we 
should  not  forget  the  teachings  and  history  of  the 
past,  and  regard  as  trivial  and  unimportant,  con¬ 
stitutional  principles,  the  persistent  violation  of 
which  has  led  to  the  dethronement  of  kings  and 
the  overthrow  of  long  established  forms  of  govern¬ 
ment.  We  should  not  forget  the  lettres  du  caehet 
of  the  French  monarchs,  or  the  illegal  imprison¬ 
ments  under  Charles  the  First.  In  our  efforts  to 
read  aright  and  profit  by  the  terrible  lesson  which 
the  present  condition  of  our  unhappy  country  pre¬ 
sents,  we  should  not  forget  what  Hume,  and  Hal- 
lam,  and  Blackstone,  and  Marshall,  and  Story,  and 
Kent,  have  taught  us.  The  language  of  Black- 
stone  [1.  Blackstone’s  Com.,  134,  135,  186]  has 
been  often  quoted  and  approved,  and  it  states  with 
accuracy  the  laws  and  Constitution  of  England, 
and  the  practice  of  the  French  monarchy  at  the 
time  he  wrote.  This,  with  the  proceedings  of  the 
House  of  Commons  upon  the  celebrated  Petition 
of  Right,  shows  the  importance  which  the  sore  ex¬ 
perience  of  the  people  of  England  had  given  to  the 
questions  involved  in  the  present  case.  Black- 
stone  says:  [vol.  1,  p.  134]  “Next  to  personal  se¬ 
curity,  the  law  of  England  regards,  asserts,  and 
preserves  the  personal  liberty  of  individuals.  This 
personal  liberty  consists  in  the  power  of  locomo¬ 
tion,  of  changing  situation,  or  moving  one’s  person 
to  whatsoever  place  one’s  own  inclination  may 
direct,  without  imprisonment  or  restraint,  unless 
by  due  course  of  law.  Concerning  which  we  may 
make  the  same  observations  as  upon  the  preceding 
article,  that  it  is  a  right  strictly  natural ;  that  the 
laws  of  England  have  never  abridged  it  without 
sufficient  cause  ;  and  that  in  this  kingdom  it  can¬ 
not  ever  be  abridged  at  the  mere  discretion  of  the 
magistrate,  without  the  explicit  permission  of  the 
laws.  Here  again  the  language  of  the  great  char¬ 
ter  is,  that  no  freeman  shall  be  taken  or  imprison¬ 
ed  but  by  the  lawful  judgment  of  his  equals,  or  by 
the  law  of  the  land.  And  many  subsequent  old 
statutes  expressly  direct  that  no  man  shall  be 
taken  or  imprisoned  by  suggestion  or  petition  to 
the  King  or  his  Council,  unless  it  be  by  legal  in¬ 
dictment,  or  the  process  of  the  common  law.  By 
the  petition  of  right  [3  Car.  I] :  It  is  enacted  that 
no  freeman  shall  be  imprisoned  or  detained  with¬ 
out  cause  shown,  to  which  he  make  answer  ac¬ 
cording  to  law.  By  16,  Car.  I,  c.  10,  if  any  per¬ 
son  be  restrained  of  his  liberty  by  order  or  decree 
of  any  illegal  court,  or  by  command  of  the  King’s 
Majesty  in  person,  or  by  warrant  of  the  Council 
Board,  or  of  any  of  the  Privy  Council,  he  shall, 
upon  demand  of  his  counsel,  have  a  writ  of  habeas 


8 


corpus ,  to  bring  his  body  before  the  Court  of 
King’s  Bench  or  Common  Pleas,  who  shall  deter¬ 
mine  whether  the  cause  of  his  commitment  be  just, 
and  thereupon  do  as  to  justice  shall  appertain. 
And  by  31  Oar.  II,  c.  2,  commonly  called  the  ha¬ 
beas  corpus  act,  the  methods  of  obtaining  this  writ 
were  so  plainly  pointed  out  and  enforced,  that  so 
long  as  this  statute  remains  unimpeached,  no  sub¬ 
ject  of  England  can  be  long  detained  in  prison,  ex¬ 
cept  in  those  cases  in  which  the  law  requires  and 
justifies  such  detainer.  And  lest  this  act  should 
be  evaded  by  demanding  unreasonable  bail,  or 
sureties,  for  the  prisoner’s  appearance,  it  is  de¬ 
clared  by  1st  W.  and  M.,  st.  2,  c.  2,  that  excessive 
bail  ought  not  to  be  required. 

“  Of  great  importance  to  the  public  is  the  preser¬ 
vation  of  this  personal  liberty  ;  for,  if  once  it  were 
left  in  the  power  of  any,  the  highest  magistrate,  to 
imprison  whomever  he  or  his  officers  thought 
proper  (as  in  France  it  is  daily  practiced  by  the 
Crown),  there  would  soon  be  an  end  of  all  other 
rights  and  immunities.  Some  have  thought  that 
unjust  attacks,  even  upon  life  and  property,  at  the 
arbitrary  will  of  the  magistrate,  are  less  dangerous 
to  the  commonwealth  than  such  as  are  made  upon 
the  personal  liberty  of  the  subject.  To  bereave  a 
man  of  life,  or  by  violence  to  confiscate  his  estate, 
without  accusation  or  trial,  would  be  so  gross  and 
notorious  an  act  of  despotism  as  must  at  once 
convey  the  alarm  of  tyranny  throughout  the  whole 
kingdom;  but  confinement  of  the  person,  by  se¬ 
cretly  hurrying  him  to  jail,  where  his  sufferings 
are  unknown  or  forgotten,  is  a  less  public,  a  less 
striking,  and  therefore  a  more  dangerous  engine  of 
arbitrary  government.  And  yet,  sometimes  when 
the  State  is  in  danger,  even  this  may  be  a  neces¬ 
sary  measure.  But  the  happiness  of  our  Constitu¬ 
tion  is,  that  it  is  not  left  to  the  executive  power  to 
determine  when  the  danger  of  the  State  is  so  great 
as  to  render  this  measure  expedient ;  for  it  is  the 
Parliament  only,  or  legislative  power,  that,  when¬ 
ever  it  sees  proper,  can  authorize  the  Crown,  by 
suspending  the  habeas  corpus  act  for  a  short  and 
limited  time,  to  imprison  suspected  persons  with¬ 
out  giving  any  reason  for  so  doing  ;  as  the  Senate 
of  Rome  was  wont  to  have  recourse  to  a  dictator, 
a  magistrate  of  absolute  authority,  when  they 
judged  the  Republic  in  any  imminent  danger.” 

Again,  Blackstone  says  [vol.  iii,  pp.  133,  134 
and  135]  :  “In  a  former  part  of  these  commenta¬ 
ries  we  expatiated  at  large  on  the  personal  liberty 
of  the  subject.  This  was  shown  to  be  a  natural, 
inherent  right,  which  could  not  be  surrendered  or 
forfeited  unless  by  the  commission  of  some  great 
and  atrocions  crime,  and  which  ought  not  to  be 
abridged  in  any  case  without  the  special  permis¬ 
sion  of  law.  A  doctrine  coeval  with  the  first  rudi¬ 
ments  of  the  English  Constitution,  and  handed 
down  to  us  from  our  Saxon  ancestors,  notwith¬ 
standing  all  their  struggles  with  the  Danes,  and 
the  violence  of  the  Norman  conquest;  asserted 
afterwards  and  confirmed  by  the  Conqueror  him¬ 
self  and  his  descendants,  and  though  sometimes  a 
little  impaired  by  the  ferocity  of  the  times,  and 
the  occasional  despotisms  of  jealous  and  usurping 
princes,  yet  established  on  the  firmest  basis  by  the 


provisions  of  magna  charia ,  and  a  long  succession 
of  statutes  enacted  under  Edward  III.  To  assert 
an  absolute  exemption  from  imprisonment  in  all 
cases,  is  inconsistent  with  every  idea  of  law  and 
political  society,  and  in  the  end  would  destroy  all 
civil  liberty,  by  rendering  its  protection  impossi¬ 
ble  ;  but  the  glory  of  the  English  law  consists  in 
clearly  defining  the  times,  the  causes,  and  the  ex¬ 
tent,  when,  wherefore,  and  to  what  degree,  the 
imprisonment  of  the  subject  may  be  lawful.  This 
it  is  which  induces  the  absolute  necessity  of  ex¬ 
pressing  upon  every  commitment  the  reason  for 
which  it  is  made,  that  the  court,  upon  a  habeas 
corpus ,  may  examine  into  its  validity ;  and,  accord¬ 
ing  to  the  circumstances  of  the  case,  may  dis¬ 
charge,  admit  to  bail,  or  remand  the  prisoner ;  and 
yet,  early  in  the  reign  of  Charles  I,  the  Court  of 
King’s  Bench,  relying  upon  some  arbitrary  prece¬ 
dents  (and  those  perhaps  misunderstood),  deter¬ 
mined  that  they  could  not,  upon  a  habeas  corpus , 
either  bail  or  deliver  a  prisoner,  though  commit¬ 
ted  without  any  cause  assigned,  in  case  he  was 
committed  by  the  special  command  of  the  King, 
or  by  the  Lords  of  the  Privy  Council.  Thi3  drew 
on  a  parliamentary  inquiry,  and  produced  the  peti¬ 
tion  of  right  [3  Car.  I],  which  recites  this  illegal 
judgment,  ana  enacts  that  no  freeman  hereafter 
shall  be  so  imprisoned  or  detained.  But  when,  in 
the  following  year,  Mr.  Selden  and  others  were 
committed  by  the  Lords  of  the  Council,  in  pursu¬ 
ance  of  his  Majesty’s  special  command,  under  a 
general  charge  of  “  notable  contempts  and  stirring 
up  sedition  against  the  King  and  Government,” 
the  judges  delayed  for  two  terms  (including  also 
the  long  vacation),  to  deliver  an  opinion  how  far 
such  a  charge  was  bailable.  And  when  at  length 
they  agreed  it  was,  they,  however,  annexed  a  con¬ 
dition  of  finding  sureties  for  their  good  behavior, 
which  still  protracted  their  imprisonment ;  the 
Chief  Justice,  Sir  Nicholas  Hide,  at  the  same  time 
declaring  that,  “  if  they  were  again  remanded  for 
that  cause,  perhaps  the  court  would  not  afterwards 
grant  a  habeas  corpus ,  being  already  made  ac¬ 
quainted  with  the  cause  of  their  imprisonment. 
But  this  was  heard  with  indignation  and  astonish¬ 
ment  by  every  lawyer  present ;  according  to  Mr. 
Selden’s  own  account  of  the  matter,  whose  resent¬ 
ment  was  not  cooled  at  the  distance  of  four  and 
twenty  years. 

“  These  pitiful  evasions  gave  rise  to  the  statute 
(16  Car.,  I,  c.  10,  §  8),  whereby  it  is  enacted,  that 
if  any  person  be  committed  by  the  King  himself, 
in  person,  or  by  his  Privy  Council,  or  any  of  the 
members  thereof,  he  shall  have  granted  to  him 
without  delay,  upon  any  pretense  whatsoever,  a 
writ  of  habeas  corpus ,  upon  demand  or  motion 
made  to  the  Court  of  the  King’s  Bench,  or  Com¬ 
mon  Pleas;  who  shall  thereupon,  within  three 
court  days  after  the  return  is  made,  examine  and 
determine  the  legality  of  such  commitment,  and  do 
what  to  justice  shall  appertain,  in  delivering,  bail¬ 
ing,  or  remanding  such  prisoner.  Yet,  still  in  the 
case  of  Jenks,  before  alluded  to,  who,  in  1676, 
was  committed  by  the  King  in  council,  for  a  tur¬ 
bulent  speech  at  Guildhall,  new  shifts  and  devices 
were  made  use  of  to  prevent  his  enlargement  by 


9 


law,  the  Chief  Justice  (as  well  as  the  Chancellor) 
declining  to  award  a  writ  of  habeas  corpus  ad  subji¬ 
ciendum,  in  vacation,  though  at  last  he  thought 
proper  to  award  the  usual  writs  ad  deliberandum , 
&c.,  whereby  the  prisoner  was  discharged  at  the 
Old  Bailey.  Other  abuses  had  also  crept  into  ; 
daily  practice,  which  had,  in  some  measure,  de¬ 
feated  the  benefit  of  this  great  constitutional  rem¬ 
edy.  The  party  imprisoning  was  at  liberty  to  de¬ 
lay  his  obedience  to  the  first  writ,  and  might  wait 
till  a  second  and  third,  called  an  alias  and  pluries , 
were  issued,  before  he  produced  the  party ;  and 
many  other  vexatious  shifts  were  practiced  to  de¬ 
tain  State  prisoners  in  custody.  But  whoever  wil 
attentively  consider  the  English  history  may  obi 
serve  that  the  flagrant  abuse  of  any  power,  by  the- 
Crown  or  its  ministers,  has  always  been  productive 
of  struggle,  which  either  discovers  the  exercise  of 
that  power  to  be  contrary  to  law,  or  if  legal,  re¬ 
strains  it  for  the  future.  This  was  the  case  in  the 
present  instance ;  the  oppression  of  an  obscure  in¬ 
dividual  gave  birth  to  the  famous  habeas  corpus 
act  (31  Car.  II,  §  2),  which  is  frequently  considered 
as  another  magna  charta  of  the  kingdom ;  and, 
by  consequence  and  analogy,  has  also  in  subse¬ 
quent  times  reduced  the  general  method  of  pro¬ 
ceeding  on  those  writs  (though  not  within  the 
reach  of  that  statute,  but  issuing  merely  at  the 
common  law),  to  the  true  standard  of  law  and 
liberty.” 

The  complaint  contained  in  the  3d,  4th  and  5th 
articles  of  the  Petition  of  Right,  referred  to  by  Mr. 
Justice  Blackstone,  and  to  which  the  reluctant 
consent  of  Charles  the  1st  was  enforced  by  the 
English  House  of  Commons  (Hume’s  History  of 
England,  chap.  51,  and  copy  of  petition  in  note  ; 
and  see  Hallam,  chap.  1),  related  to  illegal  arrests 
and  imprisonments,  and  the  denial  of  relief  upon 
habeas  corpus.  These  articles  are  as  follows : 

“  III.  And  whereas,  also,  by  the  statute  called 
The  great  charter  of  the  liberties  of  England, 
it  is  declared  and  enacted,  That  no  freeman 
may  be  taken  or  imprisoned,  or  be  disseized 
of  bis  freehold  or  liberties,  or  his  free  cus¬ 
toms,  or  be  outlawed  or  exiled,  or  in  any 
manner  destroyed,  but  by  the  lawful  judg¬ 
ment  of  his  peers,  or  by  the  law  of  the  land. 

IV.  And  in  the  eighth  and  twentieth  year  of  the 
reign  of  King  Edward  III,  it  was  declared  and 
enacted  by  authority  of  Parliament,  That  no 
man  of  what  estate  or  condition  that  he  be, 
should  be  put  out  of  his  land  or  tenements, 
nor  taken,  nor  imprisoned,  nor  disherited, 
nor  put  to  death,  without  being  brought  to 
answer  by  due  process  of  law. 

V.  Nevertheless,  against  the  tenor  of  the  said 
statutes  and  other,  the  good  laws  and  statutes 
of  your  realm  to  that  end  provided,  divers  of 
your  subjects  have  of  late  been  imprisoned 
without  any  cause  showed ;  and  when  for 
their  deliverance,  they  wrere  brought  before 
justice,  by  your  Majesty’s  writs  of  habeas  cor¬ 
pus ,  there  to  undergo  and  receive  as  the 
Court  should  order,  and  their  keepers  com¬ 
manded  to  certify  the  cause  of  their  detainer, 
no  cause  was  certified,  but  that  they  were  de¬ 


tained  by  your  Majesty’s  special  command, 
signified  by  the  Lords  of  your  Privy  Council, 
and  yet  were  returned  back  to  several  pri¬ 
sons,  without  being  charged  with  anything  to 
which  they  might  make  answer  according  to 
the  law.” 

And  by  the  tenth  article  of  this  Petition  of 
Right,  it  was  prayed  among  ether  things,  “  that  no 
freeman,  in  any  such  manner  as  is  before  men¬ 
tioned,  be  imprisoned  or  detained,”  and  to  this, 
Charles  1st,  after  much  delay  and  a  prior  evasive 
answer,  was  at  last  compelled  by  the  House  of 
Commons  to  yield  his  assent  in  the  customary 
form,  “  Let  it  "be  law  as  is  desired  and  thereby, 
as  Hume  says,  “  gave  full  sanction  and  authority 
to  the  petition.”  It  is  true,  that  he  afterwards 
acted  in  violation  of  the  rights  thus  solemnly  re¬ 
cognized  ;  but  it  is  equally  true,  that  his  head  was 
brought  to  the  block  by  his  oppressed  and  indig¬ 
nant  people. 

No  further  discussion  can  be  necessary  to  show 
the  importance  of  the  principles  involved  in  this 
case,  or  the  duty  of  every  judicial  officer  to  con¬ 
strue,  with  all  reasonable  strictness,  the  doubtful 
language  of  an  executive  order  capable  of  being 
made  the  instrument  of  innumerable  and  gross  en¬ 
croachments  upon  the  liberty  of  the  citizen. — * 
There  may  be  some  ground  for  doubt  in  regard  to 
the  true  construction  of  the  orders  of  the  W  ar 
Department  of  August  8,  1862,  but  I  am  inclined 
to  think  they  were  not  intended  to  have  the  opera¬ 
tion  and  effect  which  it  has,  as  I  understand,  been 
contended  should  be  given  to  them,  in  accordance 
with  what  is  alleged  to  be  their  literal  meaning 
and  effect. 

However  that  may  be,  in  the  view  that  I  have 
felt  compelled  to  take  in  regard  to  another  ques¬ 
tion  arising  in  the  case,  I  do  not  deem  it  necessary 
to  say  more  in  respect  to  the  proper  construction 
of  this  order.  The  question  referred  to  is,  whether 
the  privilege  of  the  writ  of  habeas  corpus  has  been, 
in  any  case,  legally  suspended? 

In  considering  this  question  I  shall  not  inquire 
whether  the  order  under  consideration  was  made, 
or  purports  to  be  made,  by  or  under  the  autho¬ 
rity  of  the  President  of  the  United  States.  The 
use  of  the  words,  “  By  direction  of  the  President 
of  the  United  States,”  in  the  first  subdivision  of 
the  order,  and  their  omission  in  the  second  and 
third  subdivisions,  may  cast  some  doubt  upon  the 
point,  but  for  the  purpose  of  the  present  question 
I  shall  assume  that  the  first  and  second  orders  of 
the  8th  of  August,  1862,  are  in  fact  and  in  law  the 
orders  of  the  President  of  the  United  States. 

Can  the  President,  then,  without  the  authority 
of  Congress,  suspend  the  privilege  of  the  writ  of 
habeas  corpus  ? 

When  the  counsel  for  the  petitioner,  some  days 
since,  suggested  that  he  desired  to  apply  for  a 
habeas  corpus  to  bring  up  the  body  of  the  petition¬ 
er,  I  had  the  impression  that  Congrsss,  at  its  late 
session,  had  passed  an  act  authorizing  the  Presi¬ 
dent  to  suspend  the  privilege  of  the  writ  of  habeas 
corpus ,  and  that  he  had  sanctioned  the  order  of 
the  War  Department,  under  such  authortty.  If 
this  had  been  the  case,  I  should  have  held  it  to  be 


10 


iny  duty  to  refuse  the  writ,  in  a  case  within  the  ' 
scope  of  the  law  of  Congress,  and  the  order  of  the 
President : — but  having,  since  that  suggestion  was 
made,  received  the  acts  of  the  last  session,  I  find 
that  I  was  mistaken,  and  that  Congress  has  passed 
no  law  on  this  subject.  The  question  of  the  power 
of  the  President  to  suspend  the  privilege  of  the 
habeas  corpus ,  without  the  authority  of  Congress, 
is  therefore  presented  in  this  case,  if  the  order  of 
the  War  Department  is  deemed  to  be  the  order  of 
the  President,  and  to  extend  to  such  a  case  as  that 
now  under  consideration. 

This  question  is  one  of  constitutional  law  and 
constitutional  construction,  and  was,  I  think,  gen¬ 
erally  considered  as  no  longer  open  to  controversy, 
until  it  was  brought  prominently  before  the  public 
by  the  case  of  Merryman,  before  the  learned  and 
venerable  Chief  Justice  of  the  United  States.  In 
that  case  (24  Boston  Law  Reporter,  page  J 8  and 
*79),  the  highest  judicial  officer  of  the  United 
States,  did  not  hesitate  to  declare,  in  respect  to 
the  claim  that  the  President  had  the  power  to  sus¬ 
pend  the  privilege  of  the  writ  of  habeas  corpus, 
“that  he  listened  to  it  with  some  surprise,  for  I'’ 
[he]  “  had  supposed  it  to  be  one  of  those  points  of 
constitutional  law  upon  which  there  was  no  differ¬ 
ence  of  opinion,  and  that  it  was  admitted  on  all 
hands  that  the  privilege  of  the  writ  could  not  be 
suspended,  except  by  act  of  Congress.” 

The  clause,  upon  which  the  question  arises,  is 
found  in  the  first  article  of  the  Constitution  of 
the  United  States,  which  treats  of  Congress  and 
its  powers,  and  is  in  these  words :  “  The  privilege  of  \ 
the  writ  of  habeas  corpus  shall  not  be  suspended ,  i 
unless  when ,  in  cases  of  rebellion  or  invasion ,  the 
public  safety  may  require  it and  the  reasoning 
of  the  Chief  J ustice  in  the  case  referred  to,  is  suf¬ 
ficient,  in  my  judgment,  to  show  that  the  power 
of  suspension  is  a  legislative,  and  not  an  execu¬ 
tive  power,  and  must  be  exercised,  or  its  exercise 
authorized  by  Congress. 

But  the  question  does  not  rest  upon  the  rea¬ 
soning  or  authority  of  the  present  Chief  J  ustice. 
He  properly  cited  the  authority  of  Chief  Justice 
Story,  and  of  the  Supreme  Court  of  the  United 
States  when  the  Chief  J ustice’s  seat  was  filled  by 
John  Marshall,  the  ablest  constitutional  lawyer 
our  country  has  produced.  I  cannot  forbear  now 
to  quote  that  portion  of  the  opinion  of  the  Chief 
Justice  which  refers  to  the  authority  of  Mr.  Jus¬ 
tice  Story,  and  of  the  Supreme  Court  of  the  Uni¬ 
ted  States.  The  Chief  Justice  says :  “But  I  am 
not  left  to  form  my  judgment  upon  this  great 
question  from  analogies  between  the  English  gov¬ 
ernment  and  our  own,  or  the  commentaries  of 
English  jurists,  or  the  decisions  of  English  Courts, 
although  upon  this  subject  they  are  entitled  to 
the  highest  respect  and  are  justly  regarded  as 
authoritative  by  our  courts  of  justice.  To  guide 
me  to  a  right  conclusion,  I  have  the  commentaries 
on  the  Constitution  of  the  United  States,  of  the 
late  Chief  Justice  Story,  not  only  one  of  the  most 
eminent  jurists  of  the  age,  but  for  a  long  time 
one  of  the  brightest  ornaments  of  the  Supreme 
Court  of  the  United  States,  and  also  the  clear  and 
authoritative  decision  of  that  Court  itself,  given 


more  than  a  half  century  since,  and  conclusively 
establishing  the  principles  I  have  above  stated. 

Mr.  Justice  Story,  speaking  in  his  Commenta¬ 
ries  of  the  habeas  corpus  clause  in  the  Constitu¬ 
tion,  says,  “  It  is  obvious  that  cases  of  a  peculiar 
emergency  may  arise  which  may  justify,  nay,  even 
require  the  temporary  suspension  of  any  right  to 
the  writ.  But  as  it  has  frequently  happened  in 
foreign  countries,  and  even  in  England,  that  the 
writ  has,  upon  various  pretexts  and  occasions, 
been  suspended,  whereby  persons  apprehended 
upon  suspicion  have  suffered  a  long  imprisonment, 
sometimes  from  design  and  sometimes  because 
they  were  forgotten,  the  right  to  suspend  it  is 
expressly  confined  to  cases  of  rebellion  or  inva¬ 
sion,  where  the  public  safety  may  require  it.  A 
very  just  and  wholesome  restraint,  which  cuts 
down  at  a  blow  a  fruitful  means  of  oppression, 
capable  of  being  abused  in  bad  times  to  the  worst 
of  purposes.  Hitherto,  no  suspension  of  the  writ 
has  ever  been  authorized  by  Congress  since  the 
I  establishment  of  the  Constitution.  It  would  seem, 
as  the  power  is  given  to  Congress  to  suspend  the 
writ  of  habeas  corpus  in  the  cases  of  rebellion  or 
invasion,  that  the  right  to  judge  whether  the  exi- 
!  gency  had  arisen,  must  exclusively  belong  to  that 
body.” — [3  Story’s  Com.  on  the  Constitution,  sec¬ 
tion  1836.] 

And  Chief  Justice  Marshall,  in  delivering  the 
opinion  of  the  Supreme  Court  in  the  case  of  ex 
parte  Bollman  and  Swartwout,  uses  this  decisive 
language  in  4  Cranch,  95  : 

“  It  may  be  worthy  of  remark  that  this  act 
(speaking  of  the  one  under  which  I  am  proceed¬ 
ing)  was  passed  by  the  first  Congress  of  the  United 
States,  sitting  under  a  Constitution  which  had 
declared  ‘  that  the  privilege  of  the  writ  of  habeas 
corpus  should  not  be  suspended  unless  when  in  cases 
of  rebellion  or  invasion  the  public  safety  might 
require  it.'  Acting  under  the  immediate  influence 
of  this  injunction,  they  must  have  felt,  with  pecu¬ 
liar  force,  the  obligation  of  providing  efficient 
means  by  which  this  great  constitutional  privilege 
should  receive  life  and  activity ;  for  if  the  means 
be  not  in  existence,  the  privilege  itself  would  be 
I  lost,  although  no  law  for  its  suspension  should  be 
enacted.  Under  the  impression  of  this  obligation, 
they  gave  to  all  the  Courts  the  power  of  awarding 
writs  of  habeas  corpus."  And  again,  in  page  101  : 

“  If  at  any  time  the  public  safety  should  require 
the  suspension  of  the  powers  vested  by  this  act  in 
the  Courts  of  the  United  States,  it  is  for  the  Legis¬ 
lature  to  say  so.  The  question  depends  upon 
political  considerations,  on  which  the  Legislature 
is  to  decide.  Until  the  legislative  will  be  ex¬ 
pressed,  this  court  can  only  see  its  duty  and  obey 
the  laws.” 

I  can  add  nothing  to  these  clear  and  emphatic 
words  of  my  great  predecessor. 

In  the  course  of  his  elaborate  and  well  consid¬ 
ered  opinion,  Mr.  Chief  Justice  Taney  states  his 
views  at  length,  and  I  shall  make  several  extracts 
from  other  parts  of  his  opinion,  to  show  the  man- 
i  ner  in  which  the  question  came  before  him,  the 
conclusions  to  which  he  arrived,  and  a  portion  of 
the  argument  by  which  his  views  are  sustained. 


11 


He  says :  “  The  case,  then,  is  simply  this.  A  mil¬ 
itary  officer,  residing  in  Pennsylvania,  issues  an 
order  to  arrest  a  citizen  of  Maryland  upon  vague 
and  indefinite  charges,  without  any  proof,  so  far 
as  appears.  Under  this  order  his  house  is  entered 
in  the  night ;  he  is  seized  as  a  prisoner,  and  con¬ 
veyed  to  Fort  McHenry,  and  there  kept  in  close 
confinement.  And  when  a  habeas  corpus  i3  served 
on  the  commanding  officer,  requiring  him  to  pro¬ 
duce  the  prisoner  before  a  Justice  of  the  Supreme 
Court,  in  order  that  he  may  examine  into  the 
legality  of  the  imprisonment,  the  answer  of  the 
officer  is  that  he  is  authorized  by  the  President  to 
suspend  the  writ  of  habeas  corpus  at  his  discretion, 
and,  in  the  exercise  of  that  discretion,  suspends  it 
in  this  case,  and  on  that  ground  refuses  obedience 
to  the  writ. 

“  As  the  case  comes  before  me,  therefore,  I  under¬ 
stand  that  the  President  not  only  claims  the  right 
to  suspend  the  writ  of  habeas  corpus  himself,  at  his 
discretion,  but  to  delegate  that  discretionary  power 
to  a  military  officer,  and  to  leave  it  to  him  to 
determine  whether  he  will  or  will  not  obey  judicial 
process  that  may  be  served  upon  him. 

“No  official  notice  has  been  given  to  the  courts 
of  justice,  or  to  the  public,  by  proclamation  or 
otherwise,  that  the  President  claimed  this  power, 
and  had  exercised  it  in  the  manner  stated  in  the 
return.  And  I  certainly  listened  to  it  with  some 
surprise,  for  I  had  supposed  it  to  be  one  of  those 
points  of  constitutional  law  upon  which  there  was 
no  difference  of  opinion,  and  that  it  was  admitted 
on  all  hands  that  the  privilege  of  the  writ  could 
not  be  suspended  except  by  act  of  Congress. 

“  When  the  conspiracy  of  which  Aaron  Burr 
was  the  head,  became  so  formidable,  and  was  so 
extensively  ramified  as  to  justify,  in  Mr.  Jefferson’s 
opinion,  the  suspension  of  the  writ,  he  claimed,  on 
his  part,  no  power  to  suspend  it,  but  communicated 
his  opinion  to  Congress,  with  all  the  proofs  in  his 
possession,  in  order  that  Congress  might  exercise 
its  discretion  upon  the  subject,  and  determine 
whether  the  public  safety  required  it.  And  in  the 
debate  which  took  place  upon  the  subject,  no  one 
suggested  that  Mr.  Jefferson  might  exercise  the 
power  himself,  if,  in  his  opinion,  the  public  safety 
demanded  it. 

“  Having  therefore  regarded  the  question  as  too 
plain  and  too  well  settled  to  be  open  to  dispute,  if 
the  commanding  officer  had  stated  that,  upon  his 
own  responsibility  and  in  the  exercise  of  his  own 
discretion,  he  refused  obedience  to  the  writ,  I 
should  have  contented  myself  with  referring  to 
the  clause  in  the  Constitution,  and  to  the  construc¬ 
tion  it  received  from  every  jurist  and  statesman  of 
tnat  day,  when  the  case  of  Burr  was  before  them. 
But  being  thus  officially  notified  that  the  privilege 
of  the  writ  has  been  suspended  under  the  orders 
and  by  the  authority  of  the  President,  and,  believ¬ 
ing  as  I  do,  that  the  President  has  exercised  a 
power  which  he  does  not  possess  under  the  Consti¬ 
tution,  a  proper  respect  for  the  high  office  he  fills 
requires  me  to  state  plainly  and  fully  the  grounds 
of  my  opinion,  in  order  to  show  that  i  have  not 
ventured  to  question  the  legality  of  his  act  without 
a  careful  and  deliberate  examination  of  the  whole 
subject. 


“  The  clause  in  the  Constitution  which  authorizes 
the  suspension  of  the  privilege  of  the  writ  of  habeas 
corpus ,  is  in  the  ninth  section  of  the  first  article. 

“  This  article  is  devoted  to  the  legislative  depart¬ 
ment  of  the  United  States,  and  has  not  the  slight¬ 
est  reference  to  the  executive  department.  It 
begins  by  providing  ‘that  all  legislative  powers 
therein  granted  shall  be  vested  in  a  Congress  of 
the  United  States,  which  shall  consist  of  a  Senate 
and  a  House  of  Representatives.’  And  after  pre¬ 
scribing  the  manner  in  which  these  two  branches 
of  the  legislative  department  shall  be  chosen,  it 
proceeds  to  enumerate  specifically  the  legislative 
powers  which  it  thereby  grants,  and  legislative 
powers  which  it  expressly  prohibits,  and  at  the 
conclusion  of  this  specification  a  clause  is  inserted 
giving  Congress  the  power  ‘  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  Govern¬ 
ment  of  the  United  States,  or  in  any  department 
or  office  thereof.’ 

“  The  power  of  legislation  granted  by  this  latter 
clause  is  by  its  words  carefully  confined  to  the 
specific  objects  before  enumerated.  But  as  this 
limitation  was  unavoidably  somewhat  indefinite,  it 
was  deemed  necessary  to  guard  more  effectually 
certain  great  cardinal  principles  essential  to  the 
liberty  of  the  citizen,  and  to  the  rights  and  equal¬ 
ity  of  the  States,  by  denying  to  Congress,  in  express 
terms,  any  power  of  legislating  over  them.  It  was 
apprehended,  it  seems,  that  such  legislation  might 
be  attempted  under  the  pretext  that  it  was  neces¬ 
sary  and  proper  to  carry  into  execution  the  powers 
granted,  and  it  was  determined  that  there  should 
be  no  room  to  doubt,  where  rights  of  such  vital 
importance  were  concerned,  and,  accordingly,  this 
clause  was  immediately  followed  by  an  enumeration 
of  certain  subjects  to  which  the  powers  of  legisla¬ 
tion  shall  not  extend ;  and  the  great  importance 
which  the  framers  of  the  Constitution  attached  to 
the  privilege  of  the  writ  of  habeas  corpus  to  protect 
the  liberty  of  the  citizen,  is  proved  by  the  fact 
that  its  suspension,  except  in  cases  of  invasion  and 
rebellion,  is  first  in  the  list  of  prohibited  powers  ; 
and  even  in  these  cases,  the  power  is  denied,  and 
its  exercise  prohibited,  unless  the  public  safety 
may  require  it.  It  is  true  that  in  the  cases  men¬ 
tioned  Congress  is,  of  necessity,  the  judge  of 
whether  the  public  safety  does  or  does  not  require 
it,  and  its  judgment  is  conclusive.  But  the  intro¬ 
duction  of  these  words  is  a  standing  admonition 
to  the  legislative  body  of  the  danger  of  suspending 
it,  and  of  the  extreme  caution  they  should  exercise 
before  they  give  the  Government  of  the  United 
States  such  power  over  the  liberty  of  a  citizen. 

“It  is  the  second  article  of  the  Constitution  that 
provides  for  the  organization  of  the  Executive  de¬ 
partment,  and  enumerates  the  powers  conferred  on 
it,  and  prescribes  its  duties.  And  if  the  high 
power  over  the  liberty  of  the  citizen  now  claimed 
was  intended  to  be  conferred  on  the  President,  it 
would  undoubtedly  be  found  in  plain  words  in  this 
article.  But  there  is  not  a  word  in  it  that  can  fur- 
nish  the  slightest  ground  to  justify  the  exercise  of 
the  power. 


12 


“  The  article  begins  by  declaring  that  the  Execu¬ 
tive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America,  to  hold  his  office  during 
the  term  of  four  years  ;  and  then  proceeds  to 
prescribe  the  mode  of  election,  and  to  specify  in 
precise  and  plain  words  the  powers  delegated 
to  him,  and  the  duties  imposed  upon  him.  *  * 

*****  He  is  not  empowered  to  ar¬ 
rest  any  one  charged  with  an  offense  against  the 
United  States,  and  whom  he  may,  from  the  evi¬ 
dence  before  him,  believe  to  be  guilty,  nor  can  he 
authorize  any  officer,  civil  or  military,  to  exercise 
this  power,  for  the  fifth  article  of  the  amendments 
to  the  Constitution  expressly  provides  that  no  per¬ 
son  shall  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law — that  is,  judicial  pro¬ 
cess.  And  even  if  the  privilege  of  the  writ  of 
habeas  corpus  was  suspended  by  act  of  Congress, 
and  a  party  not  subject  to  the  rules  and  articles  of 
war  was  afterwards  arrested  and  imprisoned  by 
regular  judicial  process,  he  could  not  be  detained 
in  prison  or  brought  to  trial  before  a  military  tri¬ 
bunal,  for  the  article  in  the  amendments  to  the 
Constitution,  immediately  following  the  one  re¬ 
ferred  to,  that  is,  the  sixth  article,  provides  that, 
in  all  criminal  prosecutions,  the  accused  shall  en¬ 
joy  the  right  to  a  speedy  and  public  trial  by  an  im¬ 
partial  jury  of  the  State  and  District  wherein  the 
crime  shall  have  been  committed,  which  district 
shall  have  been  previously  ascertained  by  law,  and 
to  be  informed  of  the  nature  and  cause  of  the  ac¬ 
cusation  ;  to  be  confronted  with  the  witnesses 
against  him  ;  to  have  compulsory  process  for  ob¬ 
taining  witnesses  in  his  favor,  and  to  have  the  as¬ 
sistance  of  counsel  for  his  defense. 

“And  the  only  power,  therefore,  which  the  Pres¬ 
ident  possesses,  where  the ‘life,  liberty  or  prop¬ 
erty  ’  of  a  private  citizen  is  concerned,  is  the 
power  and  duty  prescribed  in  the  third  section  of 
the  second  article,  which  requires  ‘  that  he  shall 
take  care  that  the  laws  be  faithfully  executed.’ 
*  *  *  With  such  provisions  in  the  Constitu¬ 

tion,  expressed  in  language  too  clear  to  be  misun¬ 
derstood  by  any  one,  I  can  see  no  ground  whatever 
for  supposing  that  the  President,  in  any  emergen¬ 
cy,  or  in  any  state  of  things,  can  authorize  the 
suspension  of  the  privilege  of  the  writ  of  habeas 
corpus ,  or  arrest  a  citizen  except  in  aid  of  the 
judicial  power.  He  certainly  does  not  faithfully 
execute  the  laws,  if  he  takes  upon  himself  legisla¬ 
tive  power,  by  suspending  the  writ  of  habeas  cor¬ 
pus,  and  the  judicial  power  also,  by  arresting  and 
imprisoning  a  person  without  due  process  of  law. 
Nor  can  any  a'rgument  be  drawn  from  the  nature 
of  sovereignty,  or  the  necessities  of  government, 
for  self-defense,  in  times  of  tumult  and  danger. 
The  Government  of  the  United  States  is  one  of 
delegated  and  limited  powers.  It  derives  its  exist¬ 
ence  and  authority  altogether  from  the  Constitu¬ 
tion,  and  neither  of  its  branches,  Executive,  Leg¬ 
islative,  or  Judicial,  can  exercise  any  of  the  pow¬ 
ers  of  Government  beyond  those  specified  and 
granted ;  for  the  tenth  article  of  the  amendment 
to  the  Constitution,  in  express  terms,  provides  that 
‘  the  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States, 


are  reserved  to  the  States  respectively  or  to  the 
people.’ 

*  *  *  *  “  While  the  value  set  upon  this  writ 
of  habeas  corpus  in  England  has  been  so  great  that 
the  removal  of  the  abuses  which  embarrassed  its 
enjoyment  has  been  looked  upon  as  almost  a  new 
grant  of  liberty  to  the  subject,  it  is  not  to  be  won¬ 
dered  at  that  the  continuance  of  the  writ  thus 
made  effective  should  have  been  the  object  of  the 
most  jealous  care.  Accordingly,  no  powrer  in  Eng¬ 
land  short  of  that  of  Parliament  can  suspend  or 
authorize  the  suspension  of  the  writ  of  habeas  cor¬ 
pus.  I  quote  again  from  Blackstone  [1  Com., 
136.]  :  ‘  But  the  happiness  of  our  Constitution  is, 
that  it  is  not  left  to  the  executive  power  to  deter¬ 
mine  when  the  danger  of  the  State  is  so  great  as 
to  render  this  measure  expedient.  It  is  the  Par¬ 
liament  only,  or  legislative  power,  that,  whenever 
it  sees  proper,  can  authorize  the  Crown  to  suspend 
the  habeas  corpus  for  a  short  and  limited  time,  to 
imprison  suspected  persons  without  giving  any 
reason  for  so  doing.’  And  if  the  President  of  the 
United  States  may  suspend  the  writ,  then  the  Con¬ 
stitution  of  the  United  States  has  conferred  upon 
him  more  regal  and  absolute  power  over  the  lib¬ 
erty  of  the  citizen  than  the  people  of  England  have 
thought  it  safe  to  entrust  to  the  Crown — a  power 
which  the  Queen  of  England  cannot  exercise  at 
this  day,  and  which  could  not  have  been  lawfully 
exercised  by  the  sovereign,  even  in  the  reign  of 
Charles  the  First;.” 

The  Chief  Justice,  in  his  opinion  in  the  case  of 
Merryroan,  referred  to  the  action  of  Congress  at 
the  time  of  Burr’s  conspiracy,  in  1807,  and  to  the 
fact  that  it  was  not  then  claimed  that  the  Presi¬ 
dent  had  power  to  suspend  the  privilege  of  the 
habeas  corpus.  There  appears  to  have  been  no  re¬ 
port  of  the  debate  in  the  Senate  on  the  bill  there 
introduced,  in  consequence  of  a  special  message 
from  President  Jefferson  (as  it  was  considered  in 
secret  session),  but  in  the  House  the  bill  was  open¬ 
ly  and  ably  discussed  by  several  members ;  and, 
though  the  bill  only  proposed  to  suspend  the  priv¬ 
ilege  “for  three  months,  and  no  longer,”  in  “all 
cases  where  any  person  or  persons  charged  on  oath 
-with  treason,  misprision  of  treason,  or  other  high 
crime  or  misdemeanor,  endangering  the  peace, 
safety,  or  neutrality  of  the  United  States,  have 
been  or  shall  be  arrested  and  imprisoned  by  virtue 
of  any  warrant  or  authority  of  the  President  of 
the  United  States,  or  from  the  chief  executive 
magistrate  of  any  State  or  Territorial  government, 
or  of  any  person  acting  under  the  direction  or  au¬ 
thority  of  the  President  of  the  United  States,”  the 
House,  by  a  vote  of  113  to  19,  rejected  the  bili, 
on  the  unusual  motion  “that  the  bill  be  rejected,” 
which  is  considered  a  motion  of  indignity,  indica¬ 
ting  that  the  bill  is  not  worthy  of  deliberate  dis¬ 
cussion  and  consideration  in  the  usual  form.  [Hurd 
on  Habeas  Corpus ,  135.] 

In  the  case  of  Johnson  vs.  Duncan,  &c.  [3  Mar¬ 
tin’s,  La.  Rep.  531],  this  question  was  brought 
under  consideration;  and,  though  Chief  Justice 
Mariin  referred  to  the  decision  of  the  Supreme 
Court,  in  the  case  cited  by  Chief  Justice  Taney,  as 
conclusive  authority,  he  nevertheless  proceeded  to 


13 


examine  the  question  as  though  it  had  not  been 
authoritatively  decided.  The  whole  opinion  is  re¬ 
markable  for  its  vigor  and  clearness,  and  will  well 
repay  the  most  careful  examination  ;  and  I  shall  ex¬ 
tract  a  portion  of  it  which  directly  relates  to  the 
question  now  under  consideration.  After  refer¬ 
ring  to  the  argument  that  all  the  function  of  the 
civil  magistrate  had  been  suspended  by  a  procla¬ 
mation  of  martial  law,  by  the  officer  commanding 
the  military  district,  the  Chief  Justice  proceeded 
as  follows  :  “  This  bold  and  novel  assertion  is  said 
to  be  supported  by  the  ninth  section  of  the  first 
article  of  the  Constitution  of  the  United  States,  in 
which  are  detailed  the  limitations  of  the  power  of 
the  Legislature  of  the  Union.  It  is  there  provided 
‘  that  the  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended ,  unless,  when  in  cases  of  invasion  or 
rebellion ,  the  public  safety  may  require  it?  We  are 
told  that  the  commander  of  the  military  district  is 
the  person  to  suspend  the  writ,  and  is  to  do  so 
whenever,  in  his  judgment ,  the  public  safety  ap¬ 
pears  to  require  it ;  that,  as  he  may  thus  paralyze 
the  arm  of  the  justice  of  his  country  in  the  most 
important  case,  the  protection  of  the  personal 
liberty  of  the  citizen,  it  follows  that  as  he  who  can  do 
the  more  can  do  the  less ,  he  can  also  suspend  all 
other  functions  of  the  civil  magistrate,  which  he 
does  by  his  proclamation  of  martial  law.” 

This  mode  of  reasoning  varies  toto  coelo  from 
the  decision  of  the  Supreme  Court  of  the  United 
States,  in  the  case  of  Swartwout  and  Bollman,  ar¬ 
rested  in  this  city,  in  1806,  by  General  Wilkinson. 
The  Court  there  declared  that  the  Constitution 
had  exclusively  vested  in  Congress  the  right  of 
suspending  the  privilege  of  the  writ  of  habeas  cor- 
pits,  and  that  body  was  the  sole  judge  of  the  ne¬ 
cessity  that  called  for  the  suspension.  “  If,  at  any 
time,”  said  the  Chief  Justice,  “the  public  safety 
shall  require  the  suspension  of  the  powers  vested 
in  the  Courts  of  the  United  States  by  this  act  (the 
habeas  corpus  act),  it  is  for  the  Legislature  to  say 
so.  This  question  depends  on  political  considera¬ 
tions,  on  which  the  Legislature  is  to  decide.  Till 
the  Legislative  will  be  expressed,  this  Court  can 
only  see  its  duties,  and  must  obey  the  law.”  [4th 
Cranch,  101.] 

The  high  authority  of  this  decision  seems,  how¬ 
ever,  to  be  disregarded,  and  a  contrary  opinion  is 
said  to  have  been  lately  acted  upon,  to  the  distress 
and  terror  of  the  good  people  of  this  State;  it  is 
therefore  meet  to  dispel  the  clouds  which  designing 
men  endeavor  to  cast  on  this  article  of  the  Consti¬ 
tution,  that  the  people  should  know  that  their 
rights,  thus  defined,  are  neither  doubtful  nor  inse¬ 
cure,  but  supported  on  the  clearest  principles  of 
our  laws. 

Approaching,  therefore,  the  question  as  if  I  were 
without  the  above  conclusive  authority,  I  find  it 
provided  by  the  Constitution  of  this  State  that  no 
power  of  suspending  the  laws  of  this  State  shall 
be  exercised  unless  by  the  Legislature,  or  under  its 
authority.  The  proclamation  of  martial  law,  there¬ 
fore,  if  intended  to  suspend  the  funettons  of  the 
Courts,  or  its  members,  is  an  attempt  to  exercise 
powers  thu3  exclusively  vested  in  the  Legislature 
— I  therefore  cannot  hesitate  in  saying  that  it  is  in  | 


this  respect  null  and  void.  If,  however,  there  be 
aught  in  the  Constitution  or  laws  of  the  United 
States  that  really  authorizes  the  commanding  offi¬ 
cer  of  a  military  district  to  suspend  the  laws  of 
this  State,  as  that  Constitution  and  these  laws  are 
paramount  to  those  of  the  State,  they  must  regu¬ 
late  the  decision  of  this  Court. 

This  leads  me  to  the  examination  of  the  power 
of  suspending  the  writ  of  habeas  corpus  and  that 
which  it  is  said  to  include,  of  proclaiming  martia 
law ,  as  noticed  in  the  Constitution  of  the  United 
States.  As  in  the  whole  article  cited,  no  mention 
is  made  of  the  power  of  any  other  branch  of 
Government  but  the  Legislative,  it  cannot  be  said 
that  any  of  the  limitations  which  it  contains  ex¬ 
tend  to  any  of  the  other  branches,  lniquum  est 
perimi  de  pacio ,  id  de  quo  cogitaium  non  est.  If, 
therefore,  this  suspending  power  exist  in  the  Exe¬ 
cutive  (under  whose  authority  it  has  been  endea¬ 
vored  to  exercise  it),  it  exists  without  any  limita¬ 
tion  ;  then  the  President  possesses  without  a 
limitation  a  power  which  the  Legislature  cannot 
exercise  without  a  limitation.  Thus  he  possesses 
a  greater  power  alone  than  the  House  of  Repre¬ 
sentatives,  the  Senate,  and  himself  jointly. 

Again,  the  power  of  repealing  a  law,  and  that  of 
suspending  it  (which  is  a  partial  repeal),  are  legis¬ 
lative  powers.  For  eodem  modo  quo  quid  oonstilui- 
tur ,  eodem  modo  desiruitur.  As  every  legislative 
power  that  may  be  exercised  under  the  Constitu¬ 
tion  of  the  United  States  is  exclusively  vested  in 
Congress,  all  others  are  retained  by  the  people  of 
the  several  States. 

In  England,  at  the  time  of  the  invasion  of  the 
Pretender,  assisted  by  the  forces  of  hostile  nations, 
the  habsas  corpus  act  was  suspended ;  but  the 
executive  did  not  thus  of  itself  stretch  its  own  au¬ 
thority  ;  the  precaution  was  deliberated  upon  and 
taken  by  the  representatives  of  the  people.  [De 
Lolme,  409.]  And  there  the  power  is  safely  lodged 
without  the  danger  of  its  being  abused.  Parlia¬ 
ment  may  repeal  the  law  on  which  the  safety  of 
the  people  depends ;  but  it  is  not  their  own 
caprices  and  arbitrary  humors,  but  the  caprices 
and  arbitrary  humors  of  other  men  which  they 
will  have  gratified  when  they  shall  thus  have  over¬ 
thrown  the  columns  of  public  liberty.  [Id.  275.] 

If  it  be  said  that  the  laws  of  war,  being  the 
laws  of  the  United  States,  authorize  the  proclama¬ 
tion  of  martial  law,  I  answer  that  in  peace  or  in 
war  no  law  can  be  enacted  but  by  the  legislative 
power.  In  England,  from  whence  the  American 
jurist  derives  his  principles  in  this  respect,  “mar¬ 
tial  law  cannot  be  used  without  the  authority  of 
Parliament.”  [5  Comyns,  229.]  The  authority  of 
the  monarch  himself  is  insufficient.  In  the  case 
of  Grant  vs.  Sir.  C.  Gould,  2d.  Hen.  Bl.,  69,  which 
was  on  a  prohibition  applied  for  in  the  Court  of 
Common  Pleas,  to  the  defendant  as  judge  advocate 
of  a  court  martial  to  prevent  the  execution  of  the 
sentence  of  that  military  tribunal,  the  counsel  who 
rssisted  the  motion,  said  it  was  not  to  be  disputed 
that  martial  law  can  only  be  exercised  in  England, 
so  far  as  it  is  authorized  by  the  mutiny  act  and  the 
articles  of  war,  all  which  are  established  by 
Parliament,  or  its  authority,  and  the  court  declared 


14 


it  totally  inaccurate  to  state  any  other  martial  law, 
as  having  any  place  whatever  within  the  realm  of 
England. 

In  the  same  case  Mr.  Justice  Derbigny,  in  deliv¬ 
ering  his  opinion,  said  :  “  To  have  a  correct  idea 
of  martial  law  in  a  free  country,  examples  must 
not  be  sought  in  the  arbitrary  conduct  of  absolute 
governments.  The  monarch  who  unites  in  his 
hands  all  the  powers,  may  delegate  to  his  generals 
an  authority  unbounded  as  his  own.  But  in  a 
republic  where  the  Constitution  has  fixed  the  extent 
and  limits  of  every  branch  of  government  in  time 
of  war,  as  well  as  of  peace,  there  can  exist  nothing 
vague,  uncertain,  or  arbitrary,  in  the  exercise  of 
any  authority.” 

The  Constitution  of  the  United  States,  in  which 
everything  necessary  to  the  general  and  individual 
security  has  been  foreseen,  does  not  provide,  that 
in  times  of  public  danger,  the  executive  power 
shall  reign  to  the  exclusion  of  all  others.  It  does  I 
not  trust  into  the  hands  of  a  dictator  the  reins  of 
the  government.  The  framers  of  that  charter  were 
too  well  aware  of  the  hazards  to  which  they 
would  have  exposed  the  fate  of  the  Republic 
by  such  a  provision,  and  had  they  done  it,  the 
States  would  have  rejected  a  Constitution  stained 
with  a  clause  so  threatening  to  their  liberties.  In 
the  meantime,  conscious  of  the  necessity  of  remov¬ 
ing  all  impediments  to  the  exercise  of  the  Execu¬ 
tive  power  in  cases  of  rebellion  or  invasion,  they  have 
permitted  Congress  to  suspend  the  privilege  of  the 
writ  of  habeas  corpus  in  those  circumstances,  if  the 
public  safety  should  require  it.  Thus  far,  and  no 
further  goes  the  Constitution.  Congress  has  not 
hitherto  thought  it  necessary  to  authorize  that 
suspension.  Should  the  case  ever  happen,  it  is  to 
be  supposed  it  would  be  accompanied  with  such 
restrictions  as  would  prevent  any  wanton  abuse  of 
power.  “In  England  (says  the  author  of  a  justly 
celebrated  work  on  the  Constitution  of  that  coun¬ 
try),  at  the  time  of  the  invasion  of  the  Pretender, 
assisted  by  the  forces  of  hostile  nations,  the  habeas 
corpus  act  was  indeed  suspended ;  but  the  execu¬ 
tive  power  did  not  thus  of  itself  stretch  its  own 
authority;  the  precaution  was  deliberated  upon 
and  taken  by  the  representatives  of  the  people ; 
and  the  detaining  of  individuals  in  consequence  of 
the  suspension  of  the  act  was  limited  to  a  fixed 
time.  Notwithstanding  the  just  fears  of  internal 
and  hidden  enemies,  which  the  circumstances  of 
the  times  might  raise,  the  deviation  from  the  former 
course  of  the  law  was  carried  no  further  than  the 
single  point  we  have  mentioned.  Persons  detained 
by  order  of  the  government,  were  to  be  dealt  with 
in  the  same  manner  as  those  arrested  at  the  suit 
of  private  individuals;  the  proceedings  against 
them  were  to  be  carried  on  no  otherwise  than  in  a 
public  place  ;  they  were  to  be  tried  by  their  peers 
and  have  all  the  usual  legal  means  of  defense  al¬ 
lowed  them,  such  as  calling  of  witnesses,  peremp¬ 
tory  challenges  of  jurors,  &c. ;  and  can  it  be  as¬ 
serted  that  while  British  subjects  are  thus  secured 
against  oppression  in  the  worst  of  times,  American 
citizens  are  left  at  the  mercy  of  the  will  of  an  in¬ 
dividual,  who  may,  in  certain  cases,  the  necessity  of 
which  is  to  be  judged  of  by  himself  assume  a  su¬ 


preme,  overbearing,  unbounded  power !  The  idea 
is  not  only  repugnant  to  the  principles  of  a  free 
government,  but  subversive  of  the  very  founda¬ 
tions  of  our  own. 

“  Under  the  Constitution  and  Laws  of  the  United 
States,  the  President  has  a  right  to  call,  or  cause 
to  be  called  into  the  service  of  the  United  States, 
even  the  whole  militia  of  any  part  of  the  Union, 
in  case  of  invasion.  This  power  exercised  by  his 
delegate,  has  placed  all  the  citizens  subject  to 
military  duty  under  military  authority  and  military 
law.  That  I  conceive  to  be  the  extent  of  the 
martial  law ,  beyond  which  all  is  usurpation  of 
power.  In  that  state  of  things  the  course  of 
judicial  proceedings  is  certainly  much  shackled, 
but  the  judicial  authority  exists,  and  ought  to  be 
exercised  whenever  it  is  practicable.  Even  where 
circumstances  have  made  it  necessary  to  suspend 
the  privilege  of  the  habeas  corpus ,  and  such  sus¬ 
pension  has  been  pronounced  by  the  competent 
authority,  there  is  no  reason  why  the  administra¬ 
tion  of  justice,  generally,  should  be  stopped.  For, 
because  the  citizens  are  deprived  temporarily  of 
the  protection  of  the  tribunals  as  to  the  safety  of 
their  persons,  it  does  by  no  means  follow  that  they 
cannot  have  recourse  to  them  in  all  other  cases. 

“  The  proclamation  of  the  martial  law ,  therefore, 
cannot  have  had  any  other  effect  than  that  of  plac¬ 
ing  under  military  authority,  all  the  citizens  sub¬ 
ject  to  military  service.  It  is  in  that  sense  alone 
that  this  vague  expression  of  martial  law  ought  to 
be  understood  among  us.  To  give  it  any  larger 
extent  would  be  trampling  upon  the  Constitution 
and  laws  of  our  country.” 

That  the  doctrines  of  these  decisions  in  regard 
to  the  exercise  of  the  power  of  suspending  the 
privilege  of  the  habeas  corpus ,  have  been  almost 
universally  considered  as  incontrovertible,  is  fully 
established,  by  reference  to  the  works  of  many 
elementary  writers,  and  by  the  fact  that  no  evi¬ 
dence  of  the  dissent  of  other  jurists  or  of  the  pro¬ 
fession  has  been  recorded.  Hurd,  in  his  work  on 
Habeas  Corpus ,  in  reference  to  the  constitutional 
provision  before  referred  to,  says  :  “  Rebellion  and 
invasion  are  eminently  matters  of  national  con¬ 
cern  ;  and  charged  as  Congress  is,  with  the  duty 
of  preserving  the  United  States  from  both  these 
evils,  it  is  fit  that  it  should  possess  the  power  to 
make  effectual  such  measures  as  it  may  deem  ex¬ 
pedient  to  adopt  for  their  suppression.”  p.  133. 
And  [p.  134],  “  This  power  has  never  been  exer¬ 
cised  by  Congress.”  And  again  [p.  149],  “  The 
provision  (of  the  Constitution)  relating  to  the  writ 
of  habeas  corpus ,  limits  the  legislative  power.” 

Smith,  in  his  Commentaries,  also  considers  this 
provision  of  the  Constitution  under  the  head 
of  “  Constitutional  restriction  upon  legislative 
power.”  Smith’s  Corns.,  chap.  8,  sec.  229 ;  and 
Curtis  in  his  History  of  the  Constitution,  also  re¬ 
fers  to  it  as  one  of  the  restrictions  upon  the 
powers  of  Congress.  2  Curtis  Hist.  Con.,  p.  359. 

In  Sheppard’s  Constitutional  Text-book,  at  page 
142,  this  is  given  as  a  restriction  upon  the  power 
of  Congress.  And  in  the  conclusion  of  the  article, 
habeas  corpus,  in  Appleton’s  New  Cyclopedia  it 
is  said,  “  It  has  been  solemnly  decided  that  the 


15 


habeas  corpus  act  can  be  suspended  only  by  the 
Legislature,  and  that  the  proclamation  of  martial 
law,  by  a  military  officer,  is  not  sufficient.” 

The  article  on  martial  law  in  the  same  work 
contains  the  following :  “  The  Constitution,  by  im¬ 
plication  at  least,  also  permits  its  proclamation,  by 
that  clause  which  provides  that  the  privileges  of 
the  writ  of  habeas  corpus  shall  not  be  suspended,” 
&c.  “The  right  to  judge  whether  the  exigency 
has  arisen  belongs,  it  seems,  exclusively  to  Con¬ 
gress.  So  in  England,  martial  law  and  its  incident, 
the  suspension  of  the  writ  of  habeas  corpus ,  requir¬ 
ed  the  authority  of  Parliamentary  acts  to  give  them 
a  constitutional  existence.” 

When  the  question  of  the  adoption  of  the  Fede¬ 
ral  Constitution  was  under  consideration  in  the 
Massachusetts  Convention,  the  constitutional  re¬ 
striction  upon  the  power  of  suspending  the  privi¬ 
lege  of  the  habeas  corpus  was  discussed  by  Judges 
Dana  and  Sumner,  in  the  presence  doubtless  of 
Nathaniel  Gorham  and  Rufus  King,  members  of 
that  Convention  as  well  as  of  the  one  that  framed 
the  Constitution  of  the  United  States,  and  both 
judges  evidently  regarded  it  as  certain  that  Con¬ 
gress  only  could  suspend  the  privilege. — 2  Elliott’s 
Debates,  108  and  109.  Hurd  on  Habeas  Corpus , 
126  aDd  127. 

And  during  Shay’s  rebellion  it  was  the  Legisla¬ 
ture  of  Massachusetts,  and  not  her  Governor,  that 
suspended  the  privilege  of  this  writ. — Hurd,  on 
Habeas  Corpus,  136. 

Against  these  authorities,  and  the  general  senti¬ 
ment  of  elementary  writers,  there  stands  opposed 
the  practice  of  the  War  Department,  first  inaugu¬ 
rated  in  a  period  of  great  excitement  and  alarm, 
and  the  official  opinion  of  the  learned  and  venera¬ 
ble  gentleman  who  now  holds  the  office  of  Attor¬ 
ney-General  of  the  United  States.  For  that  gen¬ 
tleman  I  entertain  the  highest  respect.  His  purity 
of  motive  and  character,  his  great  legal  acquire¬ 
ments  and  his  undoubted  patriotism  aDd  ability 
are  unquestioned  ;  but,  even  in  these  respects,  that 
excellent  gentleman  would  not  wish  his  friends  to 
claim  more  than  that  he  was  the  equal  of  the 
learned  Chief  Justice  of  the  United  States.  Plac¬ 
ing  their  opinions  upon  the  same  footing,  they 
would  only  neutralize  each  other,  and  then  the  de¬ 
liberate  opinions  of  Marshal,  and  Story,  and  Martin, 
and  of  the  other  Justices  of  the  Supreme  Court, 
who  concurred  in  the  opinion  of  their  Chief,  in  the 
case  of  Bollman  and  Swartwout  [4th  Cranch,  76], 
supported,  as  they  are,  in  my  judgment,  by  unan¬ 
swerable  argument,  are  decisive  of  the  question, 
and  constrain  me  to  decide  that  the  President, 
without  the  authority  of  Congress,  has  no  consti¬ 
tutional  power  to  suspend  the  privilege  of  the  writ 
of  habeas  corpus  in  the  United  States.  The  prison¬ 
er  is  therefore  in  any  view  which  I  have  been  able 
to  take  of  this  case,  entitled  to  the  benefits  of  the 
writ  of  habeas  corpus ,  and  to  be  discharged  unless 
some  reason  for  detaining  him,  beyond  that  set  out 
in  his  petition,  is  shown.  But  other  reasons  be¬ 
sides  those  set  forth  in  his  petition,  or  in  any  war¬ 
rant  or  order  of  commitment  under  which  he  may 


be  now  held,  may  be  shown.  Tne  District  Attor¬ 
ney  of  the  United  States  will  have  notice  of  the 
allowance  of  the  habeas  corpus ,  and  if,  on  its  re¬ 
turn,  or  at  any  time,  he,  or  the  Marshal  of  the 
United  States,  or  his  deputy,  or  any  other  citizen, 
can  show  that  the  petitioner  has  been  guilty  of  any 
offense  against  the  laws  of  the  United  States,  or 
has  in  any  way  subjected  himself  to  legal  arrest 
and  imprisonment,  it  will  be  my  duty  (a  duty 
which  I  certainly  shall  not  hesitate  to  perform),  to 
commit  him  to  prison  by  a  proper  and  sufficient 
order  or  warrant. 

I  have  thus  hastily,  though  with  some  labor, 
written  out  an  opinion  in  this  matter,  though  the 
application  for  a  habeas  coapus  was  ex  parte  ;  and 
was  decided  without  the  benefit  of  an  argument, 
for  or  against  the  application.  I  have  done  so  be¬ 
cause  the  duty  of  deciding  upon  the  application 
was  a  delicate  and  responsible,  as  well  as  an  im¬ 
perative  one;  and  being  compelled  to  decide  a 
question  of  such  importance,  under  such  circum¬ 
stances,  it  was  but  respectful  to  those  high  of¬ 
ficials,  whose  legal  opinions,  opposed  to  mine,  have 
led  to  the  arrest  of  the  petitioner  and  the  denial  of 
the  privilege  of  the  writ  of  habeas  corpus ,  that  I 
should  state,  at  some  length,  the  reasons  for  my 
conclusions  and  the  authority  on  which  I  relied.  I 
have  preferred,  however,  even  in  expressing  my 
own  decided  opinions,  to  adopt  the  deliberate  and 
eloquent  language  of  departed  jurists,  of  world¬ 
wide  reputation  : — (language  used  by  them  in  de¬ 
ciding  cases  which  had  been  fully  argued,  and 
used,  too,  after  they  had  had  the  benefit  of  a  full 
consultation  with  their  learned  associates  on  the 
bench) — rather  than  the  less  forcible  and  less  au¬ 
thoritative  language  in  which  I  might  have  ex¬ 
pressed  my  own  opinions.  The  decisions  referred 
to  have  been  before  the  profession  and  the  country 
for  more  than  forty  years,  and,  so  far  as  I  know, 
they  had  not,  until  a  very  recent  period,  been 
questioned,  or  their  doctrines  assailed  by  any  re¬ 
spectable  jurist.  I  cannot  but  endeavor  to  follow, 
though  with  feeble  and  unsteady  steps,  in  the 
paths  of  constitutional  duty  clearly  and  distinctly 
marked  with  the  ineffaceable  footprints  of  Mar¬ 
shall,  of  Story,  of  Washington,  of  Livingston,  of 
Martin,  and  of  Taney  ;  and  guided  by  the  serene 
and  steady  light  of  their  recorded  opinions,  I  may 
certainly  hope  not  to  go  far  astray. 

I  have  endorsed  the  proper  allowance  upon  the 
petition  presented,  and  upon  the  writ  prepared  by 
the  Clerk. 

The  writ  of  habeas  corpus  having  been  awarded 
in  pursuance  of  the  views  expressed  in  the  fore¬ 
going  opinion,  and  the  prisoner  having  been 
brought  before  the  Judge  upon  the  return  of  the 
habeas  corpus,  was  discharged  by  him  on  the 
ground  that  no  sufficient  cause  was  shown  for  his 
detention ;  but  he  was  immediately  re-arrested 
under  orders  from  the  War  Department,  taken  to 
Washington,  and  there  confined. 


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